Life After Corona

At this point, it seems trite to say that the Coronavirus quarantine has been very challenging for children with disabilities and their families. Districts, federal and state agencies, and families are still struggling with how best (least worst?) to handle this unprecedented time. Much has been written as to what schools are required to provide students with disabilities during the Coronavirus Pandemic. But I have not read much about what schools will do after, once schools are back in session, to address the break in services these students will have had. There are things you can do now to help get what your child needs later.

On March 12th, the U.S. Department of Education (U.S. DOE) released a Q&A on providing services to children with disabilities during the Coronavirus outbreak. It's important to note that this “guidance” is non-binding. The Q&A reiterated the requirement that “an IEP Team and, as appropriate to an individual student with a disability, the personnel responsible for ensuring FAPE [Free Appropriate Public Education]” to students covered by Section 504 of the Rehabilitation Act, are “required to make an individualized determination as to whether compensatory services are needed” to make up for the decrease in services. Subsequent to that Q&A and in response to how school districts were reacting to it, on March 21st the U.S. DOE made it clear that school districts cannot shirk their FAPE obligations simply by opting to close or declining to provide distance instruction to ALL students. The guidance emphasized that “federal disability law allows flexibility in determining how to meet the individual needs of students with disabilities.” Though federal law requires distance learning to be accessible to students with disabilities, it does not require specific methodologies. But even with that “flexibility,” when there is “an inevitable delay” in providing services, or even making decisions about how to provide services, CSEs (Committee on Special Education) “must make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.”

The purpose of compensatory services, frequently referred to as comp ed, is to remedy the district’s failure to provide the child with a disability the “appropriate services” necessary to provide FAPE. In Due Process, the aim is to put the student in the place he would have been in but for the denial of FAPE. For this reason, you should keep track of the type of services and number of sessions your child receives during this time. Sometimes the sheer number of services missed (e.g. Speech and Language, Occupational Therapy, Counseling, etc.) is enough to entitle the student to comp ed. But due to the nature of this pandemic, you’ll want to demonstrate the actual effect the lack or decrease in services had on the student’s progress. The strongest argument to make to your CSE, once schools resume, will be to show concrete examples of regression. I should also note that the effects of this school closing will likely trigger CSE obligations to re-evaluate many students. Be sure to request this if you think it’s necessary. The reevaluation may help show regression as well.

There are certain actions parents can take to show that their child has regressed. If a child normally gets speech and language or reading services, take a video of your child reading. Have your child read books that are challenging to her, but not impossible. Then, once students go back to school, take a video of your child reading those same books. If anything, it should be easier for your child to read them since she’s already familiar with them; so if she’s struggling more, you have a very good argument. You can do the same thing with math worksheets and life skills goals, if she has them. Be creative. There may be other ways to show your child showed regression toward meeting her goals.

CSEs may still reject your requests for additional services when you do meet again. But at least you will have evidence to back up your arguments. And if you do eventually need to file for Due Process, this will be very useful.

If you have any questions, feel free to contact me. And remember, this too shall pass.

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